Citation Nr: 1818921 Decision Date: 03/28/18 Archive Date: 04/05/18 DOCKET NO. 12-31 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a rating of total disability due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Miller, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1967 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in February 2014 regarding his service-connected lung adenocarcinoma. The transcript is associated with the claims file. This matter was last before the Board in February 2015 when it took jurisdiction over a claim for TDIU in light of the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), as a TDIU was raised by the record in the Veteran's hearing testimony for an increased rating for lung cancer residuals in February 2014. The Board remanded for further development and consideration of TDIU. The case has been returned to the Board at this time for appellate review. FINDINGS OF FACT 1. The Veteran is service-connected for lung adenocarcinoma at 100 percent from January 11, 2010, and at 60 percent from October 1, 2012; mood disorder at 30 percent from January 9, 2013; peripheral neuropathy of the bilateral lower extremities at 10 percent each from October 1, 2012; and peripheral neuropathy of the bilateral upper extremities at 10 percent each from February 20, 2014. 2. The record documents that the Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation consistent with his work and educational background. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16, 4.19, 4.25, 4.26 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board finds that the duty to assist has been satisfied and that the Board's remand directives from the February 2015 remand order have been substantially completed. Stegall v. West, 11 Vet. App. 268 (1998). II. TDIU Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (West 2014). Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. Entitlement to a total rating must be based solely on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion. However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In this case, the Veteran contends that he is prevented from performing substantially gainful employment due to his service-connected lung adenocarcinoma and related peripheral neuropathy. The Veteran's occupational ratings in the Army were related to helicopter maintenance. The Veteran has a high school education and completed about two years of college. According to the Veteran's medical records, he reported in a May 2013 VA examination that he had last worked in October 2009 as a horse trainer and hay broker but had to stop because of his development of lung cancer, which was ultimately service-connected. The Veteran has continued to report that he is no longer physically able to return to his prior vocation due to disabilities. The Board finds that the Veteran's service-connected disabilities render him unemployable. 38 C.F.R. § 4.1, 4.3, 4.16, 4.19, 4.25, 4.26 (2017). The Veteran is service-connected for lung adenocarcinoma at 100 percent from January 11, 2010, and at 60 percent from October 1, 2012; mood disorder at 30 percent from January 9, 2013; peripheral neuropathy of the bilateral lower extremities at 10 percent each from October 1, 2012; and peripheral neuropathy of the bilateral upper extremities at 10 percent each from February 20, 2014. The Veteran's combined disability rating is 100 percent as of January 11, 2010; 70 percent from October 1, 2012; and 80 percent from January 9, 2013. Therefore, the Veteran's service-connected disabilities meet the schedular percentage criteria for TDIU. 38 C.F.R. § 4.16(a). Consequently, the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Id. The Veteran's medical records document that he underwent radiation treatment in June 2010 and chemotherapy starting in August 2010 to treat his service-connected lung adenocarcinoma, diagnosed in late 2009. An August 2012 letter from the Veteran's treating physician stated that the Veteran's lung adenocarcinoma, rated at stage III-B, has a high risk of recurrence and a 5 year survival rate of only 10 to 15 percent, which necessitated close follow-up for at least two to three years. According to the evidence of record, as a result of the Veteran's lung adenocarcinoma and treatment he experiences bouts of bronchitis regularly, at least twice per year. The Veteran is prescribed multiple bronchodilator treatments. The Veteran attends several medical appointments each year beyond his regular medical check-ups. At the Veteran's decision review officer hearing in January 2013, the Veteran described his employment post-service as being a horse trainer and hay broker for 37 years. This included riding horses up to 14 or 15 hours per day. The Veteran submitted statements in January 2013 from two associates familiar with his employment. One statement described the Veteran's employment as consisting of days that were, "long, hard and very rigorous," and the Veteran as someone who could "outwork anyone." According to this associate, the Veteran's health declined drastically after the lung cancer, to include decreased breathing ability and increased fatigue, making it "impossible to break horses for a living." According to the second associate, who had known the Veteran for ten years as a hay broker and horse breaker, the Veteran's work was "back breaking labor." The labor required tossing bales of hay weighing up to 90 pounds as well as laborious physical work training horses. The associate mentioned that both baling hay and training horses means working in dusty conditions. This associate stated that the Veteran no longer worked in that industry due to his disabilities. The Veteran was afforded a VA examination in June 2013. The examiner opined that the Veteran's service-connected lung cancer precluded strenuous work and lifting heavy items. The peripheral neuropathy precluded walking long distances. The examiner opined that the Veteran's service-connected mood disorder still allowed the Veteran to function generally satisfactorily. At a June 2014 VA examination for peripheral nerves, the Veteran reported that he often has to stop and massage his hands when they go numb because of the peripheral neuropathy, which makes him unproductive with his hands. The July 2015 VA examiner opined on the Veteran's vocational abilities. The examiner noted that the Veteran's mood disorder and nerve disability would have no impact on his ability to perform substantially gainful employment. The examiner noted that the Veteran was short of breath after walking from the parking lot to the medical office due to residuals of his service-connected lung adenocarcinoma. However, the examiner opined that based on pulmonary function testing, the Veteran's loss of lung capacity was minimal and that overall, the Veteran should be able to work at a sedentary position without any requirement to lift over ten pounds or walk more than 200 yards. Although the medical examiners have opined that the Veteran is capable of performing sedentary employment, the Board finds that, based on the Veteran's almost four decades of work as a horse trainer and hay broker, an expectation that the Veteran transition to substantially gainful employment at a desk job is at best unrealistic. See Beaty v. Brown, 6 Vet. App. 532 (1994) (Although medical examiners noted the veteran was capable of sedentary work, the veteran provided sufficient evidence that his 40 year career as a farmer was no longer an option due to his service-connected eye condition, therefore, the Board should not have rejected a claim for TDIU without producing evidence that the veteran could perform non-farm work that would produce sufficient income.) The Board acknowledges that the Veteran appears able to perform certain aspects of daily living. However, the law recognizes that a person may be too disabled to engage in employment, although he or she is fairly comfortable at home or upon limited activity, such as the Veteran in this case. See 38 C.F.R. § 4.10. A veteran also does not have to prove that he or she is 100 percent unemployable in order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award. See 38 C.F.R. § 3.340(a); Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In conclusion, the Board finds that the evidence supports the grant of entitlement to TDIU. 38 C.F.R. § 4.3. The medical and lay evidence of record establishes that the Veteran's service-connected disabilities prevent him from securing or following substantially gainful employment. 38 C.F.R. § 4.16. Accordingly, the TDIU is granted. ORDER Subject to the laws and regulations governing the payment of VA compensation, entitlement to TDIU is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs